The prisoner voting issue is like a ping-pong ball in a wind tunnel. Today's ruling means the ball is now back on the UK's side of the table Photograph: Charles Dharapak/AP

The grand chamber of the European court of human rightshas ruled that states must allow for at least some prisoners to vote, but that states have a wide discretion as to deciding which prisoners. This amounts to a retreat on prisoner votes, but certainly no surrender. As I predicted, the court reaffirmed the principles set out in Hirst No 2, that an automatic and indiscriminate bans breach the European Convention on Human Rights, but also reaffirmed that it was up to states to decide how to remove those indiscriminate bans.

I have compared the prisoner voting issue to a ping-pong ball in a wind tunnel. Today's ruling means that the ball is now back on the UK's side of the table.

Although Scoppola is a case which arose in Italy, the decision is of critical important to the UK for two reasons. First, the court has made clear to the UK government that it now has six months from today to bring forth legislative proposals which will end the blanket disenfranchisement of prisoners – see the court's helpful press release which explains the effect on the UK.

Secondly, the grand chamber has now clarified the basic outline of how it expects states to comply with the original prisoner votes ruling, also of the grand chamber, in Hirst No 2. For the full background, see my post from last week or Joshua Rozenberg's excellent article.

Retreat but no surrender

The grand chamber reversed the court's chamber's ruling in Scoppola No 3, on the basis that a life-long ban on certain prisoners voting still fell within Italy's wide margin of appreciation to decide which criminals are allowed to vote. In short, because some Italian prisoners are allowed to vote, Italy does not have an "automatic and indiscriminate" ban which the court rejected in Hirst No 2. This was because it was applied only in connection with certain offences against the state or the judicial system, or with offences which the courts considered to warrant a sentence of at least three years.

Importantly, the grand chamber has now clarified its until now somewhat contradictory position on what states must do to ensure they do not breach article 1 of protocol 3 of the European Convention on Human Rights, the obligation to "hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature".

It chose not to deviate from the decision in Hirst No 2, as the UK had argued for. Indeed, the UK's argument received short shrift; see paragraph 93 to 96. The grand chamber stated that there was even more reason now to support its 2005 decision:

93. In its observations, the third-party intervener affirmed that the grand chamber's findings in the Hirst (no 2) case were wrong and asked the court to revisit the judgment. It argued in particular that whether or not to deprive a group of people – convicted prisoners serving sentences – of the right to vote fell within the margin of appreciation afforded to the member states in the matter. [...]95. It does not appear, however, that anything has occurred or changed at the European and Convention levels since the Hirst (no 2) judgment that might lend support to the suggestion that the principles set forth in that case should be re-examined. On the contrary, analysis of the relevant international and European documents … and comparative-law information … reveals the opposite trend, if anything – towards fewer restrictions on convicted prisoners' voting rights.

As to the famous "margin of appreciation", the right of states in certain situations to decide for themselves how to incorporate controversial rulings involving social policy, the court affirmed – indeed, following Frodl v Austria, effectively put back in place – the principle that states should be able to decide for themselves how to remove indiscriminate bans on prisoners voting.

These are the crucial paragraphs, and forgive me for quoting at length as they are important (emphasis added):

In addition, according to the comparative-law data in the Court's possession (see paragraphs 45-48 above), arrangements for restricting the right of convicted prisoners to vote vary considerably from one national legal system to another, particularly as to the need for such restrictions to be ordered by a court… 102. This information underlines the importance of the principle that each state is free to adopt legislation in the matter in accordance with "historical development, cultural diversity and political thought within Europe, which it is for each contracting state to mould into their own democratic vision" (see Hirst (no. 2) [GC], cited above, § 61). In particular, with a view to securing the rights guaranteed by article 3 of protocol No 1 (see Hirst (no 2), cited above, § 84, and Greens and MT, cited above, § 113), the contracting states may decide either to leave it to the courts to determine the proportionality of a measure restricting convicted prisoners' voting rights, or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied. In this latter case, it will be for the legislature itself to balance the competing interests in order to avoid any general, automatic and indiscriminate restriction. It will then be the role of the court to examine whether, in a given case, this result was achieved and whether the wording of the law, or the judicial decision, was in compliance with article 3 of protocol No 1.

In reestablishing the wide margin of appreciation for states, the court rolled back its much-criticised decision in Frodl v Austria. It did so by, first, limiting the conclusions in that case to the particular situation in Austria (para 87), but also rejected the notion that a judge must decide which prisoners to vote on a case-by-case basis:

9. That reasoning takes a broad view of the principles set out in Hirst, which the grand chamber does not fully share. The grand chambe points out that the Hirst judgment makes no explicit mention of the intervention of a judge among the essential criteria for determining the proportionality of a disenfranchisement measure … While the intervention of a judge is in principle likely to guarantee the proportionality of restrictions on prisoners' voting rights, such restrictions will not necessarily be automatic, general and indiscriminate simply because they were not ordered by a judge.

So, the UK now has six months to "bring forward legislative proposals" to remove the indiscriminate ban on prisoners' voting. It now seems clear that the UK could take a very minimalist approach as to which prisoners receive the vote, for example only those serving six month sentences or less, and still be compliant with the Hirst No 2 ruling.

What if the UK does not comply?

In short, it will be expensive. It is now almost seven years since the ruling in Hirst No 2, which by the terms of the article 46 of the ECHR the UK has promised to "abide by". In Greens and MT v the United Kingdom, the court told the UK that if it did not make progress in implementing the Hirst judgment, around 2,500 cases brought by prisoners which the court has before it including around 1,500 which had been registered, can be "unfrozen", that is reinstated.

The third way

There is another possibility. The government may put a bill before parliament by 22 November 2012 but do no more than that. That is, the bill would be presented as a means of satisfying the European court but not a policy which the government (or, arguably, the nation) supports. This will almost certainly result in the bill being defeated, and the court being forced to unfreeze the other claims.

However, is hard to see how this option would accord with the spirit or indeed the letter of the UK's obligations under international law. The government should now accept its responsibilities under the ECHR or risk poisoning public opinion even further against the court. Indeed, given the significant retreat of the court, the UK can afford to take a minimalist and relatively pain-free approach. But in doing so, it must make the case for implementation of the ruling to parliament and the public too.

Any other reaction to today's ruling may serve short-term political ends, but it will also probably do significant harm to the rule of law, which would be bad for prisoners, the public and even politicians too.

About this article

This article was published on
the Guardian website
at 11.51 EDT on Tuesday 22 May 2012.
It was last modified at 23.11 EDT on Wednesday 18 June 2014.
It was first published at 11.52 EDT on Tuesday 22 May 2012.

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